PRAGMATIC STANDARDS OF DIPLOMACY
On 2 July 2021, an arbitral tribunal in accordance with UNCLOS Annex VII handed out an unwritten file in “The Enrica Lexie incident” in India & Italy. The steering premium was disclosed since May 21, 2020. In this instance two Italian navies shot & killed two Indian fisherman aboard the “St. Antony,” an Indian fishing ship, on board a tanker putting up with the Italian flag. Since then India has asserted criminal jurisdiction against Italian seafarers, challenging Italy, amongst other reasons, since India has operated eccentrically with UNCLOS as the marines had exemption to accomplish their official tasks as “Italian staff of the State.”
The Tribunal laid the initial stone that Italy had to redeem India for shooting at the ‘St. Antony’ and violating its navigational freedom. The Tribunal concluded, however, also that India was not allowed to exercise jurisdiction against the Italian navies, which is germane, as it has the due to immunity under custodial international law. The objective of this essay shall thus be to explain why it was wrong to argue that the Tribunal was competent first of all to consider instances pertaining to the immunity of the marines from litigation.
UNCLOS DISALLOWS THE EXPANSION OF JURISDICTION TRANSCENDING TREATY : CHOPPY WATERS
The obligation of the Arbitral Tribunal to spot the “primary norms” that equate to the feud it adjudicates. A tribunal regulating outside of its jurisdiction by speaking erroneous standards proposes that the award should be lobbed.
“Principal norms,” according to Bartels, are those that tribunals employ to make determinations they are authorised to put together the applicable jurisdictional instrument. To the contrary, the employment of “incidental standards” certifies the tribunal to finalise auxiliary decisions that are only fitting to the primary ones. The determination of whether a dogma is “principal” or “incidental” is pendant on the intricate qualm plopped before the bar.
The “central standards” set forth in the treaty jurisdiction clause would head off the bearing of any other norm not specifically enclosed in the clause. This is important to keep in mind. For this rationale, the jurisdiction section conforms as lex specialis for other upkeep, such as those haggling with relevant statute, by outlining the “primary norms” to be commemorated by the tribunal.
For themes impacting on “the interpretation or implementation of the UNCLOS,the tribunal’s jurisdiction provision, set up at Article 288(1), showcase that the tribunal has jurisdiction. Therefore, a tribunal under Annex VII cannot decide claims not uptight with UNCLOS interpretation or application, as it stipulates that agreement as the ‘principal’ norm in its jurisdiction.
This viewpoint is condoned by the ruling of the court in MOX Plant. “The ‘Applicable Law’ is relegated to Article 288(1) & Article 293(1) that contends that the tribunal should design UNCLOS & international law standards. Although cardinal’s defiance between the two articles is rendered for in Article 293(1), the Tribunal found that any claim arising from a legal source other than the UNCLOS is prohibited by a State of law. This priority is justified in the operation of the lex specialist concept for Bartels if the court in MOX Plant is not nimble to elucidate why jurisdiction clauses call to be prioritised enough, since the jurisdiction clause ‘clearly counsels the court to the principal standards that are to be applied.
An identical determination may be caught up with whereabouts to the upshots of the Chagos Marine Protected Arbitration. The Court made it plain that unconnected to the interpretation or application of UNCLOS, if the “actual problem” & the “object of the claim” are, an unconsenting relationship between the cases is not enough to bring the dispute into court. It is credible that UNCLOS Article 297(1) magnifies the competence of the courts ‘over and above what alone would emerge from Article 288(1)’ in Chagos’s Marine Protected Area Arbitrating Court. However, the court has pointed out that ‘other significant international law standards,’ as referred to in Article 58, only apply to Article 297(1)(a). The UNCLOS is the ‘main’ standard and no other international law rules can be utilized unless Article 58 applies.
As a result, the UNCLOS must be the primary standard, according to Articles 288(1) and 297(1), which function as the provisions of competence. As a result, the Annex VII tribunal may rule on topics not connected to the implementation or interpretation of the Treaty since they cannot resolve things not related to the implementation. Furthermore, in the Chagos Marine Protected Area Arbitration a tribunal may only exert extremely limited “accidental” jurisdiction, which is described by the panel as “necessary in order to solve the matter before it”
THE CATECHIZATION CONCERNING IMMUNITIES: TRANSCIDENTIAL JURISDICTION OF TRIBUNAL
The Enrica Lexie case, Italy claimed that the Tribunal was thoughtful to determine whether her marines possessed UNCLOS immunity, which involved interpretation and execution. Particularly references have been made to a number of sections in the Constitution: Article 2, Para 3; Articles 56(2); (1). In particular, the Tribunal ordained that the question of immunity had nothing to do with the reliance on any of the articles at issue by Italy on its interpretation or its execution. The Tribunal nonetheless established that, since it “is an adverse issue that inescapably poses itself in the requisition of the Convention with regard to the contest put forth the Tribunal, that party is privileged to exert the competence” with respect to the incident, the Court had competency to deal with the issue of immunity.
To characterise the matter of immunity as “incidental” by the Tribunal exercising jurisdiction is wrong for two reasons: firstly, as mentioned, the characterization is reliant on whether a question has been brought to the tribunal. The South China Sea Arbitration Jurisdiction Award thus determines the court’s “objective approach” must apply to the “isolation of the substantive issue” and “identify the claim object.” Thus, the Tribunal shall have a commitment to discern the differences of the parties on a “objective” basis, as prescribed by the parties. In Enrica Lexie’s case the Tribunal was apprehensive “whether the Marines were spared from the jurisdiction of Indian criminal law.” Therefore, the matter of immunity was not just one side issue. This interpretation is supported by a dissenting judge Robinson’s view, which recognises Italy’s whines and mumbles “a major facet of the edition is the theme of maritime immunity.”
Second, it is erroneous to assume that just because jurisdiction and immunity go hand in hand, the latter is irrelevant in resolving the main issue. As mentioned before in the instance of South China Sea Arbitration referred to above, the campaigns related do not speculate that they are within the prerogative of the tribunal. The aftermath was taken that the course of immunity had to be “necessarily” considered in order to establish jurisdiction. Schatz rightly points out, however, that because of the non-provisional character of the exemption matter the Tribunal did not utilise the criterion of ‘necessity.’ Moreover, the Court’s own rationale demonstrates that without a ruling on immunities the matter of India’s exercise of jurisdiction can be resolved. “We have been able to resolve the disagreement between the Parties without a decision on immunity,” the Tribunal said. The Court stated. Accordingly, the Court still feels that the problems are distinct. As a result, in both cases, it is clear that the Tribunal lacks jurisdiction because the issue of immunities has no bearing on the interpretation and implementation of UNCLOS, as stipulated in its jurisdictional provision.
A testimony under general international law cannot be pondered under UNCLOS, as the Tribunal points out. It is apparent that the Tribunal is struggling to succeed something it can not do by calling the issue of immunity a “incidental” one. The Tribunal overstepped its bounds when it decided that the question was not covered by the UNCLOS but nonetheless proceeded to make a substantive decision.
EPILOGUE
India’s government has bidden that all lawsuits being the property of to the Enrica Lexie incident that have been pending since the Award be flouted by the Supreme Court. There is therefore no tangible stake in the case’s outcome. Despite this, international tribunals have utilised “incidental” jurisdiction to issue disputed rulings that fall transcending its jurisdictional overheads, as evidenced by the Tadi judgement. Consequently, in the future, there will certainly be fascinating arguments on interpreting the terms of the Tribunal’s decision on immunity from the application of “primary rules” to the jurisdictions clause.
